Hampton v. Griggs

• Court: North Carolina Supreme Court
• Writing for the Court: STACY, J.
• Citation: Hampton v. Griggs, 113 S.E. 501 (N.C. 1922)
• Decision Date: 13 September 1922
• Docket Number: 16.
• Parties: 184 N.C. 13, 34 A.L.R. 952 v. GRIGGS. HAMPTON

113 S.E. 501

184 N.C. 13, 34 A.L.R. 952

HAMPTON v. GRIGGS.

No. 16.

Supreme Court of North Carolina

September 13, 1922

Appeal from Superior Court, Currituck County; Bond, Judge.

Controversy without action by N. Pierce Hampton against R. A. Griggs submitted on an agreed statement of facts. Judgment for plaintiff, and defendant appeals. Reversed.

Plaintiff being under contract to convey certain lands to the defendant, executed and tendered a deed therefor and demanded payment of the purchase price as agreed. The defendant declined to accept the deed and refused to make payment claiming that the title offered was defective. Upon the facts agreed, the court, being of opinion that the deed tendered would convey a good title, gave judgment for the plaintiff whereupon the defendant excepted and appealed.

Under a will lending testator's land to his son and further providing, "I give unto the lawful heirs of my son * * * all of the lands * * * that belongs to me at the death of me and my wife * * * and if my son should die without a bodily heir then my property to go back into the H. family," the son took only a life estate, with remainder to his children and grandchildren living at his death; the rule in Shelley's Case being nonapplicable.

Aydlett & Simpson, of Elizabeth City, for appellee.

STACY J.

The plaintiff derives title to the lands in question by devise from his father, John T. Hampton, and, on the facts agreed, the title offered was properly made to depend upon the construction of the following items in the will of John T. Hampton:

"Item Five. I lend unto my son Nathaniel Pierce Hampton the farm whereon he now lives lying at the north end of Churches Island also Piney Island land and my right in Cedar Island and also my right in the marshes all of the above named lands and marshes I lend at my death and also lend all of my lands at the death of my wife Nancy and I also give all of my tools to N. P. Hampton for life.

Item Six. I give unto the lawful heirs of my son Nathaniel Pierce Hampton all of the lands and chattel property that belongs to me at the death of me and my wife Nancy and if my son should die without a bodily heir then my property to go back into the Hampton family."

The case states that the wife of the testator has been dead for a number of years; that the plaintiff has one daughter, his only child, who married the defendant, R. A. Griggs; that plaintiff's daughter is still living, and is now the mother of three children, all living. Plaintiff contends that, under the foregoing provisions of his father's will, he holds a fee-simple title to the lands sought to be conveyed, while the defendant contends that, under said provisions, the plaintiff took only a life estate in the property so devised. The merits of these respective contentions depend upon the applicability or nonapplicability of the rule in Shelley's Case.

Whatever reasons, pro and con, may have been advanced originally in support of the wisdom or impolicy of following the rule in Shelley's Case, so far as the courts of North Carolina are concerned, this is no longer an open question. Starnes v. Hill, 112 N.C. 1, 16 S.E. 1011, 22 L. R. A. 598. Much has been said in support of its adoption, and something in criticism; but, with us, it is a rule of property as well as a rule of law, and we must observe it wherever the facts call for its application. The Legislature alone may change it, if it is thought to be unsuited to the needs of our day or to the industrial life of our times. It is one of the ancient landmarks, which the fathers have set in the law as it relates to the subject of real property, and we should be slow to remove it. Prov. 22:28.

The rule itself is simple enough; but, in applying it to the variant facts of numerous cases, seemingly with some lack of uniformity, it has become a subject of much perplexity. This may be due, in a measure, to a want of appreciation of the full meaning and significance of some of the terms employed. When it is said "the word 'heirs' is a word of limitation of the estate, and not a word of purchase," within the meaning of the rule in Shelley's Case, it is to be understood that the word "limitation" is used in the sense of marking out the bounds or describing the extent or quality of the estate conveyed to the ancestor or to the first taker; and the word "purchase" is to be understood as referring to an estate acquired in such a manner as to take it out of the ordinary course of descent, or as designating certain persons to take the estate who are themselves to become the root of a new inheritance or the stock of a new descent. As thus understood and construed, Lord Coke's definition of the rule would be substantially as follows:

When an ancestor, by any gift or conveyance, taketh an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs in fee or in tail, the word "heirs" is a word marking out the bounds or describing the extent or quality of the estate conveyed to the ancestor, and not a word designating the persons who are to take the estate, other than by descent and as the beginners of a new inheritance.

It is generally held that, as prerequisites to the application of the rule, there must be, in the first instance, an estate of freehold in the ancestor or the first taker; and (2) the ancestor must acquire this prior estate by, through, or in consequence of the same instrument which contains the limitation to his heirs; (3) the words "heirs" or "heirs of the body" must be used in their technical sense, as importing a class of persons to take indefinitely in succession, from generation to generation, in the course marked out by the canons of descent; (4) the interest acquired by the ancestor and that limited to his heirs must be of the same character or quality; that is to say, both must be legal, or both must be equitable, else the two would not coalesce; and (5) the limitation to the heirs must be of an inheritance, in fee or in tail, and this must be made by way of remainder. See note, 29 L. R. A. (N. S.) 963; 24 R. C. L. 887.

It is further conceded, by practically all the authorities, that the rule in question is one of law, and not one of construction, and that, at times, it overrides even the expressed intention of the grantor, or that of the testator, as the case may be. But, when this is said, it should be understood as meaning that only the particular intent is sacrificed to the general or paramount intent. It is not the estate which the ancestor takes that is to be considered, so much as it is the estate intended to be given to the heirs. As said in Baker v. Scott, 62 Ill. 88:

"It has frequently been adjudged that, though an estate be devised to a man for his life, or for his life et non aliter, or with any other restrictive expressions, yet if there be afterward added apt and proper words to create an estate of inheritance in his heirs or heirs of his body, the extensive force of the latter words should overbalance the strictness of the former, and make him tenant in

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